1. The claimant in M. A. C. T. O. P. No. 442 of 1970 on the file of the Motor Accidents Claims Tribunal, Madras, is the appellant before us. The appellant minor Thangarajan, aged about 10 years at the time of the accident was walking along Suryanarayana Chetty Road on 14-5-1970 about 12 noon. The military lorry UD 40494 belonging to the Defence Department of the Union of India knocked Thangarajan as a result of which he sustained serious injuries. He claimed a compensation of Rs. 45,000.
2. The Union of India represented by the Secretary, Defence Department, raised various defences. Firstly it was contended that the accident was not due to the rash or negligent driving on the part of the driver of the lorry and that it was due to the reckless crossing of the road by the petitioner Thangarajan. It was also contended that the respondent, Union of India, is not liable for the tortious act of its servant, namely, the driver of the lorry, committed in the course of the exercise of its sovereign functions.
3. The Tribunal found that the appellant sustained grievous injuries as a result of the rash driving of the lorry by the driver. But it found that the Union of India is not vicariously liable for the tortious act of the driver of the lorry as the act was committed in the course of exercise of sovereign functions. In the event of the defendant being held liable, the tribunal fixed the compensation payable to the appellant at Rs. 10,000/-.
4. The evidence regarding the incident is given by the injured boy P. W. 2 and the head constable P. W. 5. P. W. 2 would state that he was crossing the road to go to the other side and that at that time, the military lorry came at a high speed without sounding the horn and knocked him down. He denied the suggestion that a State Transport bus was stationary at that time and he crossed the road behind that bus. The investigating officer P. W. 5 went to the spot immediately on receipt of information and drew up the plan E. P.2. The road was 48 ft wide at that place and repairs were going on on the road for a width of ten feet. p. W. 5 found tyre marks to a distance of about 20 ft. It is also in evidence that a part of the road was under repair and that only a single vehicle could pass along the unprepaired portion of the road. From the fact that the road was under repair and that a single vehicle alone could pass along the unrepaired portion of the road and the presence of skid marks to a distance of 20 ft, the Tribunal expressed the view that the driver of the lorry was guilty of rash driving. As the road was under repair, it was the duty of the driver to have bestowed utmost caution while driving a vehicle and we feel that the tribunal was right in accepting the evidence given by P. Ws. 2 and 5. The driver of the lorry was not examined as he was on duty and was not available.
5. Regarding the compensation payable to the appellant, if it was found that the defendant was liable, the tribunal fixed it at Rs. 10,000/-. The injured boy was in the hospital from 14-5-1970 to 1-10-1970. He had very serious injuries as spoken to by P. W. 3. There was swelling over the forehead with tenderness, abrasion over the entire abdomen and right side of chest with bleeding; the skin and the subcutaneous tissue of the whole of right thigh and right fluteal region had been peeled off and the flap attached along the adductor aspect of the right thigh with evidence of fracture of the right femur and muscles exposed. There was an abrasion over the outerside of the left thigh and another abrasion over the anterior of the right cubital fossa and another abrasion over the back of the right popletal fossa. He was discharged on 1-10-1970, but again admitted and he underwent plastic surgery treatment and also skin grafting operation on the right thigh at that time. Having regard to the very serious nature of injuries sustained by the appellant, the period of his stay in the hospital and the several, operations he had to undergo, the tribunal fixed a sum of Rs. 4,000 as compensation under the head of 'pain and suffering'. This amount is reasonable and we do not see any ground to interfere.
6. According to the father of the boy, he had to spend Rs. 4,300 towards the treatment of the boy. But he has not produced any receipts. While observing that P. W. 1 would have been put to considerable expenditure for conveyance, for purchase of nutritious food, milk etc., the tribunal allowed a sum of Rs. 1,000/- under the head of 'Expenses for treatment'. Though the amount appears to be on the low side as contended by the learned counsel for the appellant, we are not inclined to interfere.
7. The third head was 'compensation for permanent disability'. The boy is not able to walk freely and the doctor has stated that the boy would have to be operated again to enable him to walk properly. The claimant is a young boy of 13 years and he would have to suffer permanent injury right through his life. Under this head, the Tribunal has awarded a sum of Rs. 5,000/-. We feel that this is a proper compensation for the permanent injury. In short, we agree with the tribunal that a sum of Rs. 10,000 would be the appropriate compensation if the appellant is entitled to recover it from the respondent.
8. The most important question that arises for consideration in this case is whether the respondent who is the Union of India by the secretary. Defence department Commanding officer, INS Adyar is liable to pay any compensation. The plea that was taken is that the lorry was driven in the course of exercise of sovereign functions of the respondent. The circumstances under which the lorry was being driven is found in the evidence of R. W. 1 as well as in the entry Ex. R. 1. R. W. 1 Lt. Viswanathan attached to the Navy office stated that at the request of the ship I. N. S. Jamuna that CO2 gas required for the ship, the lorry was detained for collection of CO3 gas from Messrs. South India Carbonic Gas industries factory and that on the way from the port to the factory, the accident happened. The entries in Ex. R.1 and the evidence of R. W. 1 make it clear that for the purpose of supplying CO2 gas to INS Jamuna, the lorry was detained to collect the gas from the factory and to deliver it to the ship and that during the trip, the accident occurred. It is not clear from the entries Ex. R.1 and the evidence of R. W. 1 for what , purpose CO2 gas was required for the ship. We can take it that the supply of gas was required for the purpose of the ship. From the evidence we are satisfied that the lorry was being driven for taking CO2 gas to the ship INS Jamuna. It is also seen that the driver of the lorry one Lakes belongs to the Defence department and at the time of the trial of the petition, he was engaged in the forward area. It is therefore clear that the lorry was driven for the purpose of supply of CO2 gas to the ship INS lamuna and this will amount to defence purposes.
9. The important question that arises for consideration is whether under the circumstances the defence Department is liable. The law on this question has been laid down by the Supreme Court in two decisions, namely, in State of Rajasthan v. Vidyavathi, and
Kasturilal v. State of U. P., . The liability of the State for any tortious act committed by its servant while discharging a duty assigned to him by virtue of delegation of sovereign power is historical in its evaluation. The East India Co. which started as a trading concern acquired territories and started exercising sovereign functions. When the British Crown took over the administration of the territories administered by the East India Co., Government of India Act, 1858 was passed. The liability of the State being sued was embodied in Section 65 of the Act. It provided that the Secretary of State in Council can be sued as it could be done against the said company. Section 65 of the Government of India Act was re-enacted as Section 32 of the Government of India Act 1915 and as Section 176 of the Government of India Act, 1935. In the Constitution, the corresponding provision is Article 300(1). Article 300(1) provides that the Government of India may be sued in relation to its affairs in the like cases as the Dominion of India, subject to any provisions which may be made by the Act of Parliament. The Parliament has not made any provision and therefore the question has to be determined as to whether the suit would be competent against the Dominion of India before the Constitution came into force. The classic decision on the subject is the Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1868-1869) 5 Bom HC Rep App 1, rendered by Peacock, C. J. The facts of the case were that a servant of the plaintiffs was proceeding from Garden Beach tc Calcutta in a carriage drawn by a pair of horses belonging to the plaintiffs, and driven by a coachman in their employ. While the coach was passing along Kiderpore Dockyard which is a Government dockyard of which the superintendent of Marine is the head, certain workmen in Government employ who had been engaged in riveting a piece of iron funnel casing, weighing about 300 hundredweight and being 8 or 9 feet long and about 2 feet high, were carrying the rod along the road. The men carrying the load were walking along the middle of the road. The coachman called out to warn the men who were carrying the iron. The men attempted to get out of the way, those in front tried to go to the- one side and those behind tried to go to the other. The consequence of this was a loss of time, which brought the carriage close up to them, before they had left the centre of the road. They got alarmed at the proximity of the carriage and the horses and suddenly dropped the iron and ran away. The iron fell with a great noise which startled the plaintiff's horses which thereupon rushed forwards violently and fell on the iron resulting in injuries to one horse. That the injuries to the horse were due to negligence of the defendant's servants was not disputed before the learned Judge, and the case proceeded on that basis. The learned judge after elaborately considering several decisions referred to the commercial business indulged in by the company observed that the commercial business was continued to be carried on by the Government. Referring to the Bengal Marine and the Bullock train which were established by the East India Co., and continued by the Government for conveyance by sea, by river and by land not merely of public officers and of Government stores, but also of private passengers and goods for hire, the learned Judge held that while indulging in such activities, the East India Co. and the Government would be subject to the same liabilities as individuals. In this connection, the learned Judge observed as follows-
"We are of opinion that for accidents like this, if caused by the negligence of servants employed by Government, the East India Co., would have been liable, both before and after the 3rd and 4th Wm. IV C.85, and that the same liability attaches to the Secretary of Stale in Council, who is liable to be sued for the purpose of obtaining satisfaction out of the revenues of India".
After stating the position which concerned with the activities of servants employed by the Government, the learned Judge proceeded to state the law as follows-
"But where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean power which cannot be lawfully exercised except by a sovereign or private individual relegated by a sovereign to exercise them, no action will lie."
In , the Supreme Court was considering the case in
which the driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly and negligently, while bringing it back from the workship after repairs and knocked down a pedestrian and fatally injured him. The court while holding that in so far as the legislature has not enacted a law as contemplated in Article 300(1) of the Constitution, it must be held that the law is what it has been ever since the" time of the East India Co. The court also recorded a finding that it has not been shown that "the Rajasthan Union would not have been liable for the tortious act of its employees in the circumstances disclosed in the present case." Certain observations were also made in the decision to the effect that when the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. This particular passage would indicate that the Supreme Court was of the view that the immunity from liability of the State for tortious act committed by its servant when exercising sovereign powers delegated to it cannot be sustained, But as pointed out already in conclusion, the Supreme Court expressed the view that in the absence of a law being enacted by the Government under Article 300(1) of the Constitution, the law in force enforced today is the law that was in force ever since the date of the East India Co.
10. In the later decision in the Supreme Court
clarified the position. It elaborately considered the decision in and explained what it purported to lay down as the
law. It formulated the position of law thus:--
"If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is : was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortions act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie."
The Supreme Court pointed out that on the facts of the decision in it cannot be said that the driver while driving the jeep from the workshop to the Collector's residence was employed on a task or an undertaking which can be said to be referable to, or ultimately based on, the delegation of sovereign or governmental powers of the State, and that the negligent act in driving the jeep car from the workshop to the Collector's residence cannot claim immunity. The Supreme Court observed-
"In fact, the employment of a driver to drive the jeep car for the use of a civil servant is itself an activity which is not connected in any manner with the sovereign power of the State at all. That is the basis on which the decision must be deemed to have been founded; and it is the basis which is absent in the case before us."
The Supreme Court further held that the act of negligence committed by the police officers (in that case) while dealing with the property of the plaintiff which they had seized was in exereiac of their statutory power and that the power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute, and In the last analysis, they are powers which can be properly characterised as sovereign powers.
11. On an analysis of the two decisions of the Supreme Court cited and (supra), it is clear that the
liability of the State for the tortious act of its servants committed in discharge of sovereign functions is what it was before the Constitution came into force, as the Parliament has not enacted any law under Article 300 of the Constitution. We have already held that the driver of the lorry was himself a defence personnel and was driving the lorry for taking CO2 gas from the factory to the ship INS Jamuna and on the way the accident has happened. On the evidence on record, we cannot resist the conclusion that the lorry was being driven in the exercise of sovereign functions. This finding would exclude the liability of the defendant and the appeal will have to be dismissed.
12. A Division Bench judgment of this court in S. A. No. 779 of 1967 (Mad) was brought to our notice. In that case, the question that arose for consideration was whether a suit against the Government for recovery of damages for malicious prosecution and for recovery of the value of the crop alleged to have been stolen is maintainable. It was hold that the suit was maintainable and the law as laid down by the Supreme Court in should be preferred to the law laid down in . In coming to this conclusion, the Bench of this court relied on a certain passage in the (1868-1869) 5 Bom HC Rep Ap 1. This passage in the judgment commencing from 'we are of opinion that for accidents like this ............out of the revenues of India" occurs when it refers to the case before it, namely, a case of tortious act committed by a Government servant indulging in commercial activity of the Government and not a sovereign activity. The Bench of this court also proceeded to observe that Peacock, C. J. proceeded with the further question 'which is outside the scope of the reference'. With respect, we are unable to treat the views of the learned Judge as mere obiter dicta. The learned Chief Justice after having stated the law regarding tortious acts of Government servants employed in commercial activities, proceeded to deal with the liability of the State in respect of tortious acts committed by persons engaged in sovereign activities. We are equally unable to subscribe to the view of the Bench of this court that Gajendra-gadkar, C. J. in followed the second part of the judgment of Peacock, C. J. in (1868-1869) 5 Bom HCR Ap 1, while referring to the decision in . We
would normally have been obliged to refer the matter to a Full Bench as we are not in agreement with the view taken by the Bench of this court, if the question had not been concluded by the Supreme Court, the view of the Bench of this court is not good law, since the later Supreme Court decision has clearly explained its earlier decision and laid down the law. A later decision, especially when it explains an earlier decision, is the law to be followed, The Bench of this court also referred to the decisions in Madhava Rao Jivaji Rao v. Union of India, & Postmaster General, Nagpur v. Radha Bai, 1969 SCD 777 = (AIR 1969 NSC 89) and concluded that the view expressed in the earlier decision in has been approved in these two decisions. We do not we any basis for this view. The passage referred to by the Bench of this court in occurs at page 620 in paragraph 276. The court was dealing with the powers of the President under Article 366(22) of the Constitution. The Court observed that the legal sovereignty in this country vested with the Constitution and the political sovereignty was with the people of the country, and that there was no analogy between the President and the British Crown as the President is the creature of the Constitution; but proceeded to add that the President can only act in accordance with the Constitution. The question therefore as to the liability for the tortious act of a Government servant in the exercise of sovereign power is governed solely by the provisions of the Constitution in Article 300(1).
13. In 1969 SCD 777 = (AIR 1969 NSC 89) referred to in tho Division Bench judgment of this court, the Postmaster General was the appellant in the appeal against the order of the Bombay High Court holding that the Union of India was responsible in a case in which the driver of a rickshaw was killed due to the negligence of the driver of the truck belonging to the postal department. On the facts of the case, the High Court repelled the argument of the department that the Union of India was not responsible for the tortious act committed by its servants. On appeal before the Supreme Court, the counsel for the postal department stated before the court that in view of the decisions of the Supreme Court in Superintendent and Legal Remembrancer, State of West Bengal v. Corporation of Calcutta, and , he
was not in a position to press the appeal. The decision in was not even mentioned. The appeal was dismissed as not pressed. Under the circumstances, the decision in 1969 SCD 777 cannot be taken as one following the decision in in preference to the decision in . As the Division Bench decision of this court, cited supra, is not in accordance with the decision of the Supreme Court in and as none of the later decisions of the Supreme Court has in any way doubled the correctness of the decision in the view of the
Division Bench of this court is unsupportable in law and cannot be treated as a precedent.
14. After the hearing was concluded and the judgment was reserved, learned counsel for the appellant requested that the case may be posted for further hearing as he had failed to bring to the notice of this court two decisions which he considered relevant and not cited during the hearing. The appeal was again taken up and the decisions in Satyawati Devi v. Union of India, and Union of India v. Sugrabai Abdul Majid, 1968 ACJ 252 were cited before us. In an Air force vehicle at the time of the accident was carrying a hockey team. In repelling the contention that the State was not liable as the truck which caused the accident was carrying a hockey team for the purpose of physical exercise by the Air forcemen, the court held that carrying a hockey team to play a match can by no process of extension be termed as exercise of sovereign powers. On the facts of the case, the court distinguished the decision in .
15. In Union of India v. Sugrabai Abdul Majid, a
military truck knocked down a cyclist while it was engaged in carrying a machine meant for training military officers. On the facts of the case, the Bombay High Court held that it cannot be said that the driver was acting in exercise of any delegated sovereign power of the State and therefore the State was liable to pay compensation. As pointed out by the learned Judges who decided the case that although the principles which determine the immunity of the State in respect of torts committed by its servants during the course of their duty can now be taken as well settled by the decision in , it is by no means easy to apply the principle to particular cases. We respectfully agree with the above observations of the Bombay High Court. The decisions rendered by the Bombay High Court and the Delhi High Court were on the facts of the particular case, and do not help us to decide the case before us.
16. We would like to refer to the strong plea made by the Supreme Court for the enactment of a legislation to regulate and control the claim of the State for immunity. This immunity has become a historical anachronism. In England, they have gone back on the maxim that 'the King can commit no wrong' and the doctrine of immunity of the State which had been borrowed by India from England is no longer in existence in England as it has been substantially modified by the Crown Proceedings Act 1947. As pointed out by the Supreme Court in , there is hardly any justification for the State to claim immunity especially after India has become a democratic republic and a Constitution had been enacted. It is cruel to tell the injured boy who has suffered grievous injuries and was in hospital for over six months incurring considerable expenditure and been permanently incapacitated that he is not entitled to any relief as he had the privilege of being knocked down by a lorry which was driven in exercise of sovereign functions of the State. Considering the circumstances of this case, we would strongly recommend to the Union Government to make an ex gratia payment of Rs. 10,000, to the appellant herein.
17. In the result, the appeal is dismissed. There will be no order as to costs.